Legal representation is often monopolized by recognized specialists. This recognition can
take the form of providing facilities (access to files, the right to plead, the right to represent
clients without proof of power of attorney), but in most countries the profession is
completely regulated and protected by excluding all others from defending clients in
court (or even giving legal advice out of court, like in Germany, Italy and Greece). This
has created vast monopolies of professional groups of lawyers. Their names and titles are
well known, like thebarristersandsolicitorsin common law countries, theavocats,avoue ́
sandprocureursin France and theabogadiandprocuradoresin Spanish speaking
countries. They are united in associations with names like the Law Society or the Bar
Association. Their existence and proper functioning is of mutual benefit to (the administra-
tion of) justice, to the public and to themselves, because specialization costs money and
thus has to be paid for.
The public interest involved in the existence of a capable and competent legal
profession has given it a very strong position. In the European Union, for instance,
the rules of free competition do not apply to the legal profession as long as it can be
assumed that fixed or minimum prices for its services serve the interest of quality.
At the same time, the monopoly granted to the profession left it with a strong
dependency on choices made by the legislature regarding legal representation.
Thus, the profession will always be strongly opposed to any liberalization of the
rules on obligatory legal representation.
13.4.4 Commencement of Proceedings
In all jurisdictions, special attention is paid to the way proceedings can be started.
As noted above, the commencement of proceedings is closely linked to fundamen-
tal principles of the administration of justice. The way proceedings have to be
started determines the scope of the right of access to justice and should also
guarantee that the court will listen to both sides, ensuring that the other party
(which could also be the accused in criminal proceedings) will somehow get to
know what has been submitted to the court.
13.4.4.1 Document Initiating the Procedure
The first document to commence proceedings is usually highly regulated. In every
procedural code, detailed rules will be found with regard to the names of the parties,
the grounds of the claim, and the claim itself. That is understandable since the scope
of the proceedings will at least initially be determined by this document.
The precise contents of these rules depend on the way proceedings have been
shaped. A standard scenario of “claim-defense-oral hearing” will require more
detailed grounds than a procedure in which a written reaction to the defense is
foreseen. In addition, sometimes formalities have to be observed, like using the
right form, sealed paper, and the like.
Fact and Notice Pleading The first document will have to state the facts of the
case and the claim of the plaintiff. Jurisdictions will only differ in the required
preciseness of this factual statement. The extensive way of providing a basis for a
304 F. Fernhout and R. van Rhee